Bank of New York v. Conway

• Decision Date: 13 December 2006
• Docket Number: No. CV-02 0815603S.,CV-02 0815603S.
• Citation: 50 Conn.Sup. 189,916 A.2d 130
• Court: Connecticut Superior Court
• Parties: BANK OF NEW YORK as Trustee v. John E. CONWAY et al.

916 A.2d 130

50 Conn.Sup. 189

BANK OF NEW YORK as Trustee v. John E. CONWAY et al.

No. CV-02 0815603S.

Superior Court of Connecticut, Judicial District of Hartford.

December 13, 2006.

Hunt, Leibert, Chester & Jacobson, P.C., Hartford, for the named plaintiff.

Pullman & Comley, L.L.C., Hartford, for the plaintiff Countrywide Home Loans, Inc.

John E. Conway and Kathleen McGurkin, pro se, the defendants.

SAMUEL FREED, Judge Trial Referee.

INTRODUCTION

The plaintiff, Countrywide Home Loans, Inc. (Countrywide), brings this mortgage foreclosure action against the named defendant, John E. Conway, and codefendant Kathleen McGurkin. On March 2, 2000, the defendants applied to American Loan Centers (American) for a refinance mortgage loan to be secured by their home at 15 Westridge Drive in Simsbury. On March 22, 2000, the closing took place, and the defendants signed a promissory note in the amount of $223,500. At the time of the closing, the named defendant did not have any ownership interest in the property, and did not sign the mortgage deed. On March 27, 2000, the defendants signed and returned a document certifying that they had not exercised their right to cancel the transaction. Thereafter, on March 28, 2000, the codefendant executed a quitclaim deed conveying the property to herself and the named defendant, who added his signature to the mortgage his wife had signed on March 22, 2000.

On April 27, 2001, American assigned the loan to the plaintiff. The defendants made regular payments on the loan until December 31, 2001, after which time they have failed to make any payments. On February 4, 2002, the plaintiff sent the defendants a demand letter notifying them of their default and the loan's pending acceleration. The demand letter gave the defendants until March 6, 2002 to cure their default. On March 12, 2002, the named defendant mailed to the plaintiff a document entitled "notice of right to cancel," that he had received at closing in March of 2000, purportedly rescinding the transaction. The plaintiff did not void the credit transaction or return any money to the defendants.

On April 3, 2002, the named plaintiff, Bank of New York as Trustee, filed the present action to foreclose on the mortgage. On April 2, 2003, the defendants filed an answer, special defenses and counterclaims. This court substituted Countrywide as the proper plaintiff on May 22, 2006, and on May 23, 2006, the plaintiff filed a motion for summary judgment as to liability only, on the following grounds: that there is no factual dispute as to ownership, default and notices under the mortgage and note; that the defendants did not validly exercise their rights to rescind the transaction; and, that the defendants' counterclaims are barred by the relevant statute of limitations. The plaintiff has submitted a memorandum of law accompanied by certified and properly authenticated exhibits in support of its motion. On August 21, 2006, the defendants filed a memorandum of law in opposition.¹

I DISCUSSION

"Practice Book § [17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citation omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791, 849 A.2d 839 (2004). "[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred. . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

"The courts hold the [summary judgment] movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue. . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." Socha v. Bordeau, 277 Conn. 579, 585-86, 893 A.2d 422 (2006).

"[B]efore a document may be considered by the court in support of a motion for summary judgment, `there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . . .' Conn.Code Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." New Haven v. Pantani, supra, 89 Conn.App. at 679, 874 A.2d 849.

"A summary judgment, interlocutory in character, may be rendered on the issue of liability alone. . . ." Practice Book § 17-50. Additionally, "[s]ummary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996).

II THE PLAINTIFF HAS ESTABLISHED A PRIMA FACIE CASE FOR A MORTGAGE FORECLOSURE

In its memorandum of law, the plaintiff argues that it has established a prima facie case for mortgage foreclosure because there are no genuine issues of material fact regarding ownership of the note and mortgage, because the defendants are delinquent on the mortgage, and because the plaintiff has satisfied all conditions precedent to foreclosure. "In a mortgage foreclosure action, [t]o make out its prima facie case, [the foreclosing party has] to prove by a preponderance of the evidence that it [is] the owner of the note and mortgage and that [the mortgagee has] defaulted on the note." (Internal quotation marks omitted.) Franklin Credit Management Corp. v. Nicholas, 73 Conn.App. 830, 838, 812 A.2d 51 (2002), cert. denied, 262 Conn. 937, 815 A.2d 136 (2003). Furthermore, the foreclosing party must demonstrate that all conditions precedent to foreclosure, as mandated by the note and mortgage, have been satisfied. See Bank of America, FSB v. Hanlon, 65 Conn.App. 577, 581, 783 A.2d 88 (2001).

In the present case, the plaintiff has submitted with its memorandum in support of summary judgment properly authenticated copies of the promissory note and the mortgage, each signed by both defendants. The plaintiff has also submitted an authenticated copy of the notice of default and acceleration that was mailed to the defendants. The defendants' memorandum of law in opposition to the plaintiff's motion for summary judgment does not contest that the defendants defaulted on the mortgage, that the default has not presently been cured, and that the plaintiff owns both the note and the mortgage.² Similarly, the defendants do not contest that they received and signed a document stating that they did not exercise their right to cancel the transaction on March 27, 2000. The plaintiff has sufficiently demonstrated that there are no genuine issues of material fact as to the ownership of the note and mortgage, and as to the defendants' status in default on the loan.

The plaintiff has also submitted evidence that it satisfied conditions precedent to foreclosure by timely mailing a notice of default and acceleration to the defendants. The note signed by the defendants provides in pertinent part: "If I am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of principal which has not been paid and all the interest that I owe on that amount." Similarly, the mortgage's arbitration rider states that: "[the] Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this security instrument. . . . The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified . . . may result in acceleration of the sums secured by this security instrument and foreclosure or sale of the property." The notice of acceleration mailed to the defendants on February 4, 2002 stated that the defendants were in "serious default" of $3894.45. The notice specifically instructed the defendants how to cure the default, and gave the defendants until March 6, 2002—more than one month—to cure the default. The plaintiff has satisfied the conditions precedent to foreclosing on the defendants' mortgage, and the defendants have not submitted evidence to the contrary....